Thursday, June 13, 2013

Supreme Court: Oklahoma water statutes stand; 10th Circuit affirmed; Oklahoma wins

I will be updating this post with information on the decision as it develops.  Here are my quick takeaways:
  • 10th Circuit decision is affirmed.  In this posture, that is a win for Oklahoma.
  • Oklahoma laws passed in response to Tarrant Regional's actions are allowed to stand.  Among them, 82 O.S. 1086.1(A)(3) says: "Water use within Oklahoma [should] be developed to the maximum extent feasible for the benefit of Oklahoma so that out-of-state downstream users will not acquire vested rights therein to the detriment of the citizens of this state."
  • The Oklahoma Attorney General stated: "We can find no intention to create the possibility that such a valuable resource as water may become bound, without compensation, to use by an out-of-state user."
  • The decision is limited to the Red River Compact waters -- surface waters within the Red River and its tributaries and basins.
  • Red River Compact does not preempt Oklahoma water laws.
  • The decision depends greatly on the text of the Red River Compact and the course of dealing between Texas and Oklahoma over the past 40 years.
  • If the Compact intended to allow Texas to take part of its water from the Oklahoma side of the river, according to the U.S. Supreme Court, the Compact would have said so.
  • Oklahoma water laws do not violate the Dormant Commerce Clause, because all of the water covered by the Red River Compact is allocated.
  • Open door: The decision does not address water that falls outside the Red River Compact.
  • Remember that Tarrant Regional asked for an allocation -- which means a permit from the Oklahoma Water Resources Board that allows a member of the Oklahoma public to use surface water that, under Oklahoma law, is public water.
  • Tarrant Regional's current effort offered no compensation and sought to be treated as a citizen of Oklahoma.
  • In the past, Tarrant Regional tried to purchase water from the State of Oklahoma, the Chickasaw, and the Choctaw.  These efforts failed.  Perhaps there will be further efforts.
Text of decision: